Liquidation Instructions, Not Timken Notice, Starts Clock for Deemed Liquidation, CBP Says
CBP properly liquidated entries subject to antidumping duties within the required timeframe, which began when the Commerce Department issued liquidation instructions and not when it published a Federal Register notice of a court decision, CBP said in a June 24 internal advice ruling (here). CBP ruled in HQ H258962 that Alltrade, which imported pry bar sets from China, was wrong in its assertion that the six month liquidation timeline began with the Federal Register notice announcing the court decision to the public, called a Timken Notice.
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After the Court of International Trade ruled on the applicable rate for the subject goods, Commerce issued a June 14, 2012 Timken Notice that said the court decision was "not in harmony for the recalculated rates," said CBP. The litigation became final on Aug. 13, 2012, but Commerce didn't issue liquidation instructions on March 20, 2014. Alltrade protested and said the entries should have deemed liquidated at the entered rate of 49.88% no later than Feb. 13, 2013. The Port of San Francisco rejected Alltrade’s protest and application for further review as non-protestable, the company asked the port to "set aside the denial of the application for further review and to void the denial of a protest," said CBP. The port then asked CBP headquarters for further guidance "as to whether the entries were properly liquidated."
While the liquidation suspension on Alltrade's entries was effectively lifted at the end of the CIT litigation, the required "public and unambiguous notice" to CBP that the suspension was lifted didn't occur until Commerce issued the liquidation instructions, said CBP. Since CBP got those instructions on March 20, 2014, it liquidated the entries within the six month window on April 25, 2014, the agency said. Alltrade argued that the Timken Notice should have satisfied the "public and unambiguous notice" requirement to begin the clock. But, "the Timken Notice could not provide notice of the lifting of suspension as suspension had not yet been lifted," because the parties had 60 days to appeal the CIT decision. While the notice was published June 14, 2012, appeals could still be filed until Aug. 13 that year, said CBP.
Although Alltrade also pointed to Commerce's policy of publishing clear liquidation instructions within 15 days of issuing final results, that policy doesn't change whether a notice was given, CBP said. Alltrade also argued that the Timken Notice signaled that Commerce would not appeal the CIT decision. That's not the case, as Commerce didn't waive its right to appeal in that notice and it even "explained that it would issue liquidation instructions to CBP only if no appeal is filed or if filed, after it is upheld by the appeals court, said CBP. As a result, the entries were properly liquidated and there's no protestable CBP decision, CBP said.